Section 4(f) Streamlining Meeting Minutes

Southern Resource Center Geographical Area

FHWA Headquarters, Room 4438-4440
Washington, D.C.
May 23, 2001
10:00 A.M.-2:30 P.M.
I. Introduction
Cindy Burbank began the meeting by making the following three points concerning the 4(f) process:

1) Streamlining the 4(f) process is a priority for DOT and Congress. AASHTO has said this is the number
one environmental streamlining issue that needs to be addressed. A study funded by FHWA indicated that
4(f) documentation adds at least two years to the completion of an EIS.
2) The purpose of the meeting is to understand the issues underlying 4(f) and look for common sense solutions
such as regulatory/statutory changes and/or administrative changes.
3) Headquarters, Divisions, and state DOTs all need to work together to find solutions to 4(f) challenges.

Ed Kussy said that the thrust of the discussion should focus on identifying flexibility in 4(f) as it stands. He then
provided some history and background concerning 4(f). He said 4(f) was enacted in the mid 1960s in response to
highway construction in urban areas, where parkland was generally chosen instead of “well settled neighborhoods.”
This was seen as a reasonable choice, given that using parkland would not result in people being relocated. But as a
result of this philosophy, urban parkland became scarce. At this time the administrative process for documenting
4(f) was much less stringent, with no clear rules for documentation. Ed Kussy noted that legal sufficiency-a very
stringent set of standards- resulted from the 1971 Supreme Court ruling on the Overton Park case. Since then there
have been numerous Court of Appeal rulings. These rulings are only binding in the general location of the circuit
court (advisory elsewhere), thus the 4(f) standards are not consistent throughout the country.

Currently, the Southeast (5th and 11th Circuits) has the most rigorous standard. This standard is called the “black box
test,” with the area inside the box representing the 4(f) resource(s). This test includes two steps. First, the 4(f)
resource must be avoided completely without considering the level of significance/value of the resource. A road can
only penetrate the 4(f) resource if the avoidance alternative(s) is truly unusual (i.e it impacts a comfortably
integrated neighborhood, there is outrageous cost etc.) Second, if avoiding the 4(f) resource is not feasible and
prudent, the different alternatives that impact the 4(f) resource must be ranked. The alternative that mitigates harm to
the resource the greatest must then be chosen without considering impacts to areas “outside the box.” According to
Kussy, this “black box” standard makes 4(f) an extremely rigid law.

Ed Kussy suggested that the best way to get around the rigid standard in the Southeast is to try finding areas of
inherent flexibility within 4(f) as it currently stands. He argued that 4(f) is a “Holy Grail” to environmentalists and
any attempt to make statutory or regulatory amendments will be met with steep resistance. He said that “it may be
feasible to talk about such changes, but not prudent.” Cindy Burbank added that it is important to find solutions
quickly as the Interstate System will soon become eligible for the National Register with important implications
under both 4(f) and Section 106.

II. Issues/Case Studies

Lamar Smith asked the group if in their experience, the 4(f) the process either: 1) resulted in poor decision making;
2) presented special challenges; or 3) added more time to the NEPA process. Lamar then asked the group if there
were any other issues or topics that they wanted to discuss during the meeting.

Olivia Michael said that she was interested in education and training. Jim Erickson also felt that this was important,
as many of the agencies he works with have no understanding of 4(f). Carol Adkins added that consultants have
little knowledge about 4(f) and also need training. She said that explaining this process to them is time consuming
and costly. Joe Wilkerson expressed similar sentiments for the need to train consultants.

Cecil Vick asked about combining Section 106 and 4(f); Cindy Burbank mentioned that AASHTO was working on
this issue.
Joe Wilkerson mentioned that his main issue in Alabama regards privately owned structures. He said that frequently
4(f) protects historic structures that owners never intend to preserve and that are often in poor condition. He said that
Section 106 was a more reasonable process and that the SHPO will often consider details such as the likelihood of
preservation when making decisions. He expressed a great deal of frustration with the 4(f) process as it goes against
common sense. He called for FHWA to create a Nationwide 4(f) PA for historic structures similar to the Nationwide
4(f) PA for historic bridges currently in place and said that the SHPO is also interested in this.

Cecil Vick asserted that historic properties create the greatest problem in 4(f) evaluations. He suggested that like the
4(f) provision for archaeological sites, historic sites should not be considered 4(f) resources if they have value for
information alone. Harold Aikens responded that this was an interesting idea that should be further explored. Ed
Kussy agreed, but cautioned that plenty can be accomplished without changing 4(f).

Larry Dreihaup added that in the language of 4(f) the word “prudent” has come to mean “impossible.” He then
asked Ed Kussy about changing “prudent and feasible” to language that would be clearer and easier to understand.
Bob Mahoney said that “extraordinary magnitude” was also unclear and should be changed. Kussy responded by
saying that while you can interpret the law and try to change the regulations or statutes, a Court of Appeal ruling is
binding and cannot be changed.

Antonio Palacios asked about “significance” in 4(f). He asked, “ if the owner of a park says that the resource is not
significant, is this enough documentation on the significance issue?” He expressed the need for guidance in this area.
Jim Erickson later asked a similar question.

Lamar Smith then asked the entire group if documentation was a problem. Most of the group nodded yes. Olivia
Michael said that they need guidance on what was minimally needed for 4(f) documentation. She said that the state
sees the paperwork involved as a burden. She needs to know what is needed for small vs. large projects so she can
communicate this to her customers. Olivia also wanted to know what should be included in a scope of service. She
again expressed the need for minimum documentation standards.

III. Flexibility

Ed Kussy made two main points concerning flexibility in 4(f):

1) Significance definition- significance can be a difficult point to argue, but there is some give. For instance, if
land is publicly owned, you cannot carve out an insignificant part of a significant parkland. However, for multi-
use property, parts of the land that do not have a 4(f) use (i.e. that are not used for recreation) are not classified
as 4(f) properties. States have similar provisions for public land, but for historic properties the Keeper’s
determination is binding. However, 4(f) does allow an agency official to disagree with the decisions made by
state or local officials concerning National Register (NR) eligibility and local significance. These local
determinations are almost never questioned.

2) The courts are looking for a proper test of the law—they want to know that the agency complied with 4(f) and
understands all of the legal standards (including other environmental laws) that have been applied in reaching a
decision. The courts will understand the use of a 4(f) resource if documentation clearly indicates other stronger
considerations. In the Northeast, if avoiding a 4(f) property means use of other resources such as important
wetlands, Environmental Justice (E.J.) issues etc., then the use of a 4(f) property will not be questioned. In the
Southeast the use of 4(f) resource can be argued by exercising the “black box” test and setting forth arguments
for protecting non-4(f) resources.

Harold Aikens and Ed Kussy both pointed out that in setting forth an argument for a 4(f) use, documentation cannot
focus on the integrity of the resource or making conclusionary statements regarding its future use. Arguments
presented in this manner will not pass legal sufficiency, since the 4(f) standard has not been applied. For instance, if
a private property owner of a NR eligible barn intends to tear down the barn in the near future, this may appear to be
the most important (and most common sense) point to address, but it is not relevant in documenting 4(f) use. The
4(f) documentation needs to focus instead on the impacts that will result from not using the 4(f) property. All of
these concerns, (i.e. safety, E.J. issues, cost, geometrics, other agency concerns, etc.) need to be added to the other
side of the balance to tip the scale of importance in favor of these combined resources/concerns over the 4(f)
resource. According to both Aikens and Kussy, the courts will uphold this kind of argument. Aikens pointed out
that support from other agencies is key to winning court battles in 4(f) cases. Information regarding the integrity of
a 4(f) resource (i.e owner says barn will be torn down) also needs to be included in 4(f) documentation, but cannot
be part of the legal argument itself (Pam Stephenson later added that this information is important in determining
minimization). Kussy noted that courts will look to see that there has been a prudent use of a 4(f) resource and that
this decision was not “arbitrary and capricious.” He said that FHWA wins most 4(f) cases that are litigated.

Bob Mahoney questioned what constitutes “extraordinary magnitude.” Ed Kussy responded by saying that the legal
standard is that there is “no feasible and prudent alternative.” You must list the impacts associated with avoidance
and conclude that those impacts are extraordinary and unusual in the context of the project. As an example he
explained that moving families from 3 or 4 homes to avoid an unimportant park is not extraordinary. You must
document many effects such as safety, loss of community development, wetlands etc. in order to justify using the
4(f) resource. Harold Aikens later added that extraordinary magnitude is a contextual issue. Overton Park was a
huge project; smaller projects are considered differently.

Bob Mahoney said that other agencies that he works with have different perceptions about what is reasonable. Joe
Wilkerson added that in Alabama, the economic development argument does not always work.

Ed Kussy explained that the project purpose and need statement is also crucial in 4(f) documentation. Any
alternative used to avoid a 4(f) resource must be prudent and feasible. Courts recognize that FHWA builds roads to
respond to problems and are responsive to this need. If the avoidance alternatives do not meet the purpose and need,
courts will understand this as an important factor in 4(f) evaluation. Harold Aikens added that the purpose and need
statement can include a number of items such as the need for infrastructure to meet a state’s development agenda.

Cindy mentioned that the Eastern Divisions said they wanted case studies on use of flexibility in 4(f). She asked
them to send in examples, but has not received many. She requested additional case studies from the group and
suggested the need to create some hypothetical case studies based on the issues that have been discussed and key
questions that have been asked.

IV. Legal Sufficiency

Ed Kussy asked the group what kinds of problems they have addressed regarding legal sufficiency. Kussy said that
he met with the Southern Resource Center legal staff two years ago concerning legal sufficiency review and said the
process is working well with some exceptions. He said reviews across the country are conducted at different stages
of report completion ranging from pre-draft phase to the final; but said that it is best to conduct the review at the pre-
draft stage. Kussy said that legal sufficiency review was an easy process as long as the 4(f) documentation is sound,
logical and well written. Kussy said that his office is looking into training for legal teams across the country. He
said that different states have different needs, depending on the size of their programs.

Larry Dreihaup asked if an agency official is required to accept the legal advice offered by FHWA legal counsel.
Kussy said that the FHWA Division Administrator has the authority to approve a document regardless, but that the
agency needs to abide by the law. An agency cannot approve a project if it is contrary to law; in this case, the project
should be elevated. Normally, the legal team reviewing a document will advise the Division how to make the
document legal. Kussy suggested to the group that they routinely schedule periodic meetings with their legal teams
to discuss specific projects.

V. Opportunities

Lamar Smith asked the group to address 5 categories regarding new opportunities for addressing 4(f):

1) Training/Guidance
2) New Programmatic Agreements
3) Section 106 Nexus
4) Regulatory Reform
5) Statutory Changes
Training and Guidance

The main training issues that were suggested are to:

1) Schedule regular meetings with legal teams to discuss projects

2) Construct 4(f) web site*
3) Do mini-training modules
4) Use video, visual images to show legal staff projects
5) Train consultants; develop a certification program
6) Develop a question and answer brief on 4(f) court cases
7) Have regional workshops similar to this meeting
8) Develop a one page fact sheet on 4(f)
9) Develop training in people skills/public relations

*Note-Lamar Smith indicated that FHWA already has a web site with an open discussion (or community of practice)
that includes Section 4(f) (Lamar answers most of the questions himself). This site is located at
http://nepa.fhwa.dot.gov/ReNepa/ReNepa.nsf/home .

Programmatic Approaches

Suggested approaches:

1) Develop Programmatic 4(f) one state at a time to exempt privately owned historic structures with no plans for
preservation
2) Programmatic 4(f) for crossing linear corridors such as RR corridors
3) Programmatic 4(f) for transportation Enhancement Projects and like projects including
Congestion Mitigation and Air Quality
4) Develop a Programmatic 4(f) to conduct context studies; systematic surveys; treatment by property type

Suggested changes:

Section 106 Nexus

1) Integrate 4(f) and Section 106

2) Use 4(f) outcome to satisfy Section 106
3) Define a “No Adverse Effect” as a no 4(f) use even if there is a 4(f) use (minor)

Regulatory and Legislative Changes

1) Reexamine the Overton Park language and revise using phrases that are more easy to define (eliminate
“extraordinary magnitude” etc.) and redefine these terms in the context of our modern world
2) Make distinction in the regulations based on types of projects (eg. new alignment vs. upgrade existing); minor
projects should be exempted from 4(f)
3) Allow consideration of the current use and significance of a resource
4) Remove “historic properties” from 4(f)
5) Make 4(f) only apply to publicly owned historic properties
9) Create language whereby historic structures are eligible for information potential only

VI. Wrap Up

Cindy thanked the group for their input and once again asked for their help in developing case studies and guidance
for states. She said that she hoped to hear from the group with additional suggestions. Cindy also mentioned that
Tim Penney is the National FHWA Native American Coordinator while Vivian Philbin has been appointed the
FHWA National Legal Expert regarding Native American issues. The meeting was adjourned at 2:30 P.M.